Cheney's Betrayal

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This column was written by Bruce Ackerman.
As the Senate filibuster debate reaches its climax, it will become increasingly clear that the central player is neither Senator Bill Frist nor Senator Harry Reid but, rather, Vice President Dick Cheney. As president of the U.S. Senate, he is the guardian of its rules. Yet only if he betrays his trust to the Senate can Frist's efforts to destroy the filibuster succeed.

The key rule in this debate isn't the one that requires 60 senators to end a judicial filibuster. It isn't even the special provision that requires 67, rather than 60, senators to terminate debate on those special occasions when the Senate is considering a change in its standing rules. It is Rule 5: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." The only way of changing the filibuster provision that is "provided in these rules" is the one that requires 67 votes. If Cheney followed Rule 5, he would have to rule out of order any effort to change the filibuster provision with less than this kind of super-majority support.

It really is as simple as that -- which is why the leadership isn't consulting with the Senate parliamentarian. Instead, Cheney has announced that he won't enforce the rule, which expresses the consistent understanding of the Senate for two centuries. He will put the power of his office behind Frist's complex parliamentary maneuvers that aim to nullify the key provision. And if the Senate ties at 50-50, he will cast his deciding ballot in favor of destroying the rules that, as the Senate's presiding officer, he is charged with enforcing. No Senate president has abused his power like this in American history.

Cheney is taking this step in a case in which the executive branch has an obvious conflict of interest. By nullifying the standing rules, he will weaken the power of the Senate to resist President George W. Bush's nominees for the judiciary. By betraying his constitutional obligation to the Senate, he will be undermining the separation of powers.

When the Founding Fathers first designated the vice president as president of the Senate, they did not think this would happen. They believed that the vice president would be a leading opponent of the sitting president, not his hatchet man. They expected the Senate president to defend its prerogatives in the system of checks and balances.